Citation Nr: 0927131
Decision Date: 07/21/09 Archive Date: 07/30/09
DOCKET NO. 04-12 046 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Roanoke,
Virginia
THE ISSUES
1. Whether new and material evidence has been submitted to
reopen the claim for service connection for an acquired
psychiatric disorder.
2. Entitlement to service connection for Ménière's syndrome
with vertigo.
3. Entitlement to service connection for sinusitis and sinus
headaches.
REPRESENTATION
Appellant represented by: Brooks S. McDaniel,
Independent Claims Agent
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
N. T. Werner, Counsel
INTRODUCTION
The Veteran served on active duty from April 1951 to March
1953.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision of
the Department of Veterans Affairs (VA), Regional Office (RO)
in Roanoke, Virginia.
In October 2005, the Veteran testified at a Central Office
hearing before the undersigned. In November 2005, the Board
issued a decision which, among other things, denied the
application to reopen the claim of service connection for an
acquired psychiatric disorder and denied service connection
for Ménière's syndrome with vertigo as well as reopened the
claim of entitlement to service connection for sinusitis and
sinus headaches and remanded for additional development the
newly reopened sinusitis and sinus headaches claim.
The Veteran appealed the November 2005 Board decision and in
January 2008 the United States Court of Appeals for Veterans
Claims (Court) issued an Order vacating and remanding that
decision to the extent that it denied the application to
reopen the claim of service connection for an acquired
psychiatric disorder and denied service connection for
Ménière's syndrome with vertigo.
This appeal has been advanced on the Board's docket pursuant
to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2)
(West 2002).
FINDINGS OF FACT
1. In March 1988, the Board denied service connection for an
acquired psychiatric disorder.
2. Evidence received since the March 1988 Board decision is
cumulative of that previously of record.
3. The preponderance of the competent and credible evidence
does not show that Ménière's syndrome with vertigo was caused
or aggravated by a service connected disability.
4. The preponderance of the competent and credible evidence
does not show that sinusitis and sinus headaches were caused
or aggravated by a service connected disability.
CONCLUSIONS OF LAW
1. New and material evidence has not been submitted
sufficient to reopen a claim of entitlement to service
connection for an acquired psychiatric disorder. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5108 (West 2002 & Supp.
2008); 38 C.F.R. §§ 3.156, 3.159 (2008).
2. Ménière's syndrome with vertigo was not caused or
aggravated by a service connected disability. 38 U.S.C.A.
§§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§ 3.310 (2005); 38 C.F.R. § 3.156 (2008).
3. Sinusitis and sinus headaches were not caused or
aggravated by a service connected disability. 38 U.S.C.A.
§§ 1110, 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R.
§ 3.310 (2005); 38 C.F.R. § 3.156 (2008).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., existence
of a current disability, the degree of disability, and the
effective date of any disability benefits. The appellant
must also be notified of what specific evidence she is to
provide and what evidence VA will attempt to obtain. VA
thirdly has a duty to assist claimants in obtaining evidence
needed to substantiate a claim. This includes obtaining all
relevant evidence adequately identified in the record and, in
some cases, affording VA examinations. 38 U.S.C.A. § 5103A.
As to application to reopen, the Court in Kent v. Nicholson,
20 Vet. App. 1 (2006), held that the terms "new" and
"material" have specific, technical meanings that are not
commonly known to VA claimants. Because these requirements
define particular types of evidence, when providing the
notice required by the VCAA it is necessary, in most cases,
for VA to inform claimants seeking to reopen a previously and
finally disallowed claim of the unique character of evidence
that must be presented. Specifically, VA must notify a
claimant of the evidence and information that is necessary to
reopen the claim as well as notified of the evidence and
information that is necessary to establish her entitlement to
the underlying claim for the benefit in light of the specific
bases for the prior denial of the claim.
Initially, as to all the issues on appeal, the Board finds
that there is no issue as to providing an appropriate
application form or completeness of the application.
As to the application to reopen the claim of service
connection for an acquired psychiatric disorder and
entitlement to service connection for Ménière's syndrome with
vertigo, the Board finds that adjudication of these appeals
may go forward even if the claimant has not been provided
adequate VCAA notice because of the law of the case doctrine.
In this regard, the Board notes that the Court has repeatedly
stated that it has an interest in conservation of judicial
resources and in avoiding piecemeal litigation. See Harris
v. Derwinski, 1 Vet. App. 180, 183 (1991) (the "Court will
[not] review BVA decisions in a piecemeal fashion"); Fugere
v. Derwinski, 1 Vet. App. 103, 105 (1990) ("[a]dvancing
different arguments at successive stages of the appellate
process does not serve the interests of the parties or the
Court").
In the current appeal, the earlier November 2005 Board
decision contained an extensive discussion of the VCAA notice
and duty to assist requirements and concluded that they had
been satisfied. Moreover, the January 2008 Court-adopted
Joint Motion for Remand (JMR) did not identify any defect in
the Board's November 2004 decision regarding the notification
and assistance provisions of the VCAA. Nor did the parties
or the Court itself identify any deficiencies with respect to
VCAA notice and assistance compliance on the part of VA.
Therefore, because neither party raised a concern about the
VCAA notice and duty to assist requirements while the case
was before the Court and the Court also did not find any
problems, the Board finds that the law of the case is that
there are no VCAA notification and assistance defects which
can be raised by the Veteran or his representative at this
time because they had an opportunity to raise these concerns
while his appeal was before the Court and they failed to do
so. Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997)
(under the "law of the case" doctrine, appellate courts
generally will not review or reconsider issues that have
already been decided in a previous appeal of the same case,
and therefore, Board is not free to do anything contrary to
the Court's prior action with respect to the same claim).
However, even if the VCAA continues to apply to the
application to reopen the claim of service connection for an
acquired psychiatric disorder, the Board finds that the
written notice provided in November 2001 and June 2002
fulfills the provisions of 38 U.S.C.A. § 5103(a) except as to
notice of the specific element or elements required to
establish service connection that were found insufficient in
the previous denial as required by the Court in Kent, supra,
and except as to notice of the laws and regulations governing
disability ratings and effective dates as required by the
Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006).
Nonetheless, the Board finds that even though the Veteran was
not provided adequate Kent notice, this notice problem does
not constitute prejudicial error in this case because the
record reflects that a reasonable person could be expected to
understand what was needed to substantiate the claim after
reading the November 2001 and June 2002 letters; September
2003 rating decision; March 2004 statement of the case; and
April 2004 supplemental statement of the case. See Sanders
v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007); cert.
granted sub nom. Peake v. Sanders, 76 U.S.L.W. 3654 (U.S.
June 16, 2008) (No. 07-1209); rev'd, Shinseki v. Sanders, 566
U.S. ____ (2009).
Likewise, even if the VCAA continues to apply to the claim of
service connection for Ménière's syndrome with vertigo, the
Board finds that written notice provided in October 2001,
June 2002, and April 2004 fulfills the provisions of 38
U.S.C.A. § 5103(a) except as to notice of the laws and
regulations governing the assignment of disability ratings
and effective dates as required by the Court in Dingess.
While the Veteran was not provided adequate 38 U.S.C.A.
§ 5103(a) notice prior to the September 2003 rating decision,
this timing problem does not constitute prejudicial error in
this case because the record reflects that a reasonable
person could be expected to understand what was needed to
substantiate the claim after reading the October 2001, June
2002, and April 2004 letters; September 2003 rating decision;
March 2004 statement of the case; and April 2004 supplemental
statement of the case. See Sanders, supra.
Likewise, as to the application to reopen the claim of
service connection for an acquired psychiatric disorder and
the claim of service connection for Ménière's syndrome with
vertigo, the failure to provide the Veteran with Dingess
notice is harmless error because for the reasons explained
below the application to be reopen the claim of service
connection for an acquired psychiatric disorder is being
denied and the claim of service connection for Ménière's
syndrome with vertigo is being denied and therefore any issue
as to disability ratings or effective dates are moot.
As to the claim of service connection for sinusitis and sinus
headaches, the Board finds that written notice provided in
October 2001, November 2001, June 2002, November 2002,
November 2005, December 2006, March 2006, and May 2006
fulfills the provisions of 38 U.S.C.A. § 5103(a) including
notice of the laws and regulations governing the assignment
of disability ratings and effective dates as required by the
Court in Dingess.
While the Veteran was not provided adequate 38 U.S.C.A.
§ 5103(a) notice prior to the September 2003 rating decision,
the Board finds that providing this notice in the above
letters followed by a readjudication of the claim in the
January 2009 supplemental statement of the case, "cures"
the timing problem associated with inadequate notice prior to
the initial adjudication. Mayfield v. Nicholson,
20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II,
444 F.3d at 1333-34.
As to the duty to assist, the Board finds that as to all
issues on appeal VA has secured all available and identified
pertinent evidence and conducted all appropriate development.
Specifically, the record shows that VA has obtained and
associated with the claims files all available and identified
in-service and post-service treatment records. As to the
claims for service connection, the Veteran was also provided
VA examinations which provide adequate medical opinions to
allow the Board to adjudicate the claims because they were
provided after a review of the record on appeal and an
examination of the claimant. See 38 U.S.C.A. § 5103A(d);
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
The record shows that while the Veteran was in receipt of
Social Security Administration (SSA) disability since
September 1984, his SSA records are not found in the claims
files. Nonetheless, the Board finds that adjudication of his
appeal may go forward without these records because under
SSA's document retention schedule, any records pertaining to
an appellant's award of SSA benefits are destroyed no later
than the claimant's 72nd birthday and since the Veteran was
born in October 1929 he is know almost 80 years old and
therefore these records are no longer available. See Gobber
v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to
assist' is not a license for a 'fishing expedition' to
determine if there might be some unspecified information
which could possibly support a claim . . . [and] this duty is
limited to specifically identified documents that by their
description would be facially relevant and material to the
claim").
In summary, the facts relevant to this appeal have been
properly developed and there is no further action to be
undertaken to comply with the provisions of 38 U.S.C.A.
§§ 5103(a), 5103A, or 38 C.F.R. § 3.159. Therefore, the
Veteran will not be prejudiced as a result of the Board
proceeding to the merits of the claims. See Bernard v.
Brown, 4 Vet. App. 384, 392-94 (1993).
The Claim to Reopen
Initially, the Board notes that the January 2008 Court Order,
which adopted the parties JMR held that the application to
reopen the claim of entitlement to service connection for an
acquired psychiatric disorder was inextricably intertwined
with the claim of entitlement to service connection for
sinusitis and sinus headaches. Therefore, adjudication of
the claim to reopen could not go forward while the claim for
sinusitis and sinus headaches was in remand status.
However, as will be seen below, the Board via this decision
has both adjudicated and denied the claim of entitlement to
service connection for sinusitis and sinus headaches.
Accordingly, the Board finds that the application to reopen
the claim of entitlement to service connection for an
acquired psychiatric disorder is also ready for appellate
adjudication.
In this regard, the Veteran and his representative contend
that the claimant's psychiatric disorder was caused or
aggravated by his service connected otitis media. It is
requested that the Veteran be afforded the benefit of the
doubt.
The law provides that if new and material evidence has been
presented or secured with respect to matters that have been
disallowed, these matters may be reopened and the former
disposition reviewed. 38 U.S.C.A. § 5108. New evidence
means existing evidence not previously submitted to agency
decision makers. Material evidence means existing evidence
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last prior final denial of the claim sought
to be reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a).
In determining whether the evidence is new and material, the
credibility of the newly presented evidence is to be
presumed. Kutscherousky v. West, 12 Vet. App. 369, 371
(1999) (per curiam). The Board is required to give
consideration to all of the evidence received since the last
disallowance of the matter on any basis, in this case, since
the March 1998 Board decision denied the Veteran's claim.
See Hickson v. West, 12 Vet. App. 247, 251 (1999).
In this regard, evidence found in the record at the time of
the March 1998 Board decision consisted, in substance, of
medical evidence showing that since 1990 the Veteran received
treatment for severe depression, psychosis, and anxiety due
to pain. The evidence did not show, however, that any of the
diagnosed psychiatric disabilities were related to his
service-connected otitis media. What the record did show was
that he had an acquired psychiatric disorder, and it was his
statements alone, that linked that disorder to his service-
connected disabilities including otitis media.
Since the March 1998 Board decision, VA has received VA
treatment records, a June 2003 VA examination, testimony
given at an October 2005 VA Central Office hearing, and
written statements in support of claim from the Veteran and
his representative.
As to the medical evidence, they show the Veteran's continued
complaints, diagnoses, and/or treatment for psychiatric
disorders variously diagnosed. Moreover, the October 2003 VA
examination report specifically stated that the Veteran was
first treated for a psychiatric disorder in 1995 and that it
was not as a result of his service-connected otitis media.
The Board finds that this additional evidence does not relate
to an unestablished fact necessary to substantiate the claim
because it does not show that a service connected disability,
including otitis media, caused or aggravated any of his
psychiatric disorders. See 38 U.S.C.A. §§ 1110 (West 2002);
38 C.F.R. § 3.310 (2008); Allen v. Brown, 7 Vet. App. 439
(1994) (en banc). For this reason, this evidence is not new
and material as it is cumulative of evidence previously
considered. 38 C.F.R. § 3.156.
As to the written statements from the Veteran and his
representative as well as the personal hearing testimony,
these statements and testimony amount to nothing more than
their continued claims that a service connected condition,
including otitis media, caused and/or aggravated one of his
psychiatric disorders. These claims were before VA when the
Board last decided the claim in March 1998. Then, as now,
lay persons not trained in the field of medicine, to include
the claimant and his representative, are not competent to
offer an opinion regarding such medical question as to the
origins of a psychiatric disability because it is not capable
of lay observation. Jandreau v. Nicholson, 492 F. 3d 1372
(Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed.
Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002);
Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). Thus,
these statements are not competent medical evidence showing
that a psychiatric disorder was caused or aggravated by a
service connected disability including otitis media.
38 U.S.C.A. § 1110; 38 C.F.R. § 3.310.
Therefore, the newly received evidence tends to prove nothing
that was not previously shown. That the Veteran and his
representative continue to claim that his psychiatric
disorders were caused or aggravated by his service connected
otitis media is not new evidence within the context of
38 C.F.R. § 3.156.
Without new and material evidence the claim may not be
reopened. Therefore, the benefit sought on appeal is denied.
Because the claimant has not fulfilled the threshold burden
of submitting new and material evidence to reopen his finally
disallowed claim, the benefit of the doubt doctrine is
inapplicable. Annoni v. Brown, 5 Vet. App. 463, 467 (1993).
The Service Connection Claims
The Veteran and his representative contend, as interpreted by
the January 2008 JMR, that his Ménière's syndrome with
vertigo and sinusitis and sinus headaches are caused by one
of his service connected disabilities including otitis media
and/or tinnitus. In this regard, service connection may be
granted for a disability that is proximately due to or the
result of an established service-connected disability.
38 C.F.R. § 3.310. This includes a disability that is made
chronically worse by a service-connected disability. Allen,
supra.
The Board notes that 38 C.F.R. § 3.310 was amended during the
pendency of the appeal. See 71 Fed. Reg. 52744-47 (Sept. 7,
2006). The amendment sets a standard by which a claim based
on aggravation of a non-service-connected disability by a
service-connected one is judged. Although VA has indicated
that the purpose of the regulation was merely to apply the
Court's ruling in Allen, supra, it was made clear in the
comments to the regulation that the changes were intended to
place a burden on the claimant to establish a pre-aggravation
baseline level of disability for the non-service-connected
disability before an award of service connection based on
aggravation may be made. This had not been VA's practice,
which suggests the possibility that the recent change amounts
to a substantive change in the regulation. For this reason,
and because the Veteran's claim was pending before the
regulatory change was made, the Board will adjudicate the
current appeal using the version of 38 C.F.R. § 3.310 (2005)
in effect before the change because it is more favorable to
the claimant.
In adjudicating appeals, it is the responsibility of the
Board to weigh the evidence, including the medical evidence,
and determine where to give credit and where to withhold the
same. Evans v. West, 12 Vet. App. 22, 30 (1998). In so
doing, the Board may accept one medical opinion and reject
others. Id. At the same time, the Board cannot make its own
independent medical determinations, and it must have
plausible reasons, based upon medical evidence in the record,
for favoring one medical opinion over another. Rucker v.
Brown, 10 Vet. App. 67, 74 (1997). Thus, the Board must
determine the weight to be accorded the various items of
evidence in this case based on the quality of the evidence
and not necessarily on its quantity or source.
With the above criteria in mind, the Board notes that a
September 2003 rating decision shows that the Veteran is
service connected for otitis media, tinnitus, hearing loss,
and residuals of a left eardrum perforation. Therefore, the
question before the Board is whether one of these service
connected disabilities cause or aggravate the Veteran's
Ménière's syndrome with vertigo and/or sinusitis and sinus
headaches. 38 C.F.R. § 3.310; Allen, supra.
As to the relationship between these disabilities and a
service connected disability, the Veteran and his
representative though writings to VA and/or through the
personal hearing testimony claimed that service connected
disabilities, including otitis media and/or tinnitus, caused
or aggravated these disorders.
As to the medical evidence related to the origins of the
Ménière's syndrome with vertigo, a February 1999 treatment
record from Greg Still, M.D., included the following opinion:
Although the patient's symptoms sound
most consistent with vertigo, there could
be a component of cardiovascular
compromise either from arrhythmia or
decreased cardiac output. He has no
murmur to suggest aortic stenosis,
however. Ischemic heart disease is
certainly in his history but he is noting
no significant symptoms in that regard
now. There is no evidence at this point
to suggest primary neurologic abnormality
other than perhaps vestibular. With
chronic tinnitus and episodes of vertigo
Ménière's disease becomes a possibility.
Thereafter, in a December 2002 letter James H. DeBoe, Jr.,
M.D., reported as follows:
[the Veteran] gives a history of
decreased hearing, pain in ears, ringing
in ears and vertigo for a prolonged
period of time . . .
Recurrent pain in both ears and fluid
behind the tympanic membranes is due to
chronic eustachian tube dysfunction.
There is a history of severe infection
with membrane rupture on several
occasions dating back to 1952 and [this
is] likely the cause for the poor
drainage of the middle ear chamber.
Constant ringing in the ears and
recurrent vertigo are symptoms of inner
ear disease. That by history date back
to over 40 years ago having been
hospitalized for severe infection several
times in Pennsylvania and Germany.
On the other hand, at the June 2003 VA examination, after
reviewing the claims folders and examining the Veteran, the
examiner opined that Dr. BeBoe's statement that the Veteran
had injuries to his ears in service is not supported by the
service treatment records which only document treatment for
right ear otitis media. The examiner thereafter proffered an
opinion contrary to the assertions of the Veteran's that his
in-service otitis media represented the onset of his
Ménière's disease. The examiner noted that Ménière's disease
has no known cause and that while Ménière's disease may cause
vertigo and tinnitus, vertigo and tinnitus do not cause
Ménière's disease. It was next opined that there was not a
clear indication in the record that the claimant had
Ménière's syndrome and that syncopal episodes were noted in
the medical records. The examiner also opined that the
vertigo and syncopal episodes were corrected after the
placement of a pacemaker and it appeared that instead of
vertigo or Ménière's syndrome, the Veteran actually had heart
problems that were resolved after he was inserted with a
pacemaker. The examiner also noted that, while the Veteran
submitted a copy of an article from the Merck Manual
pertaining to Ménière's syndrome, that article did not
support the assertion of an etiological link between the
service-connected otitis media and his Ménière's syndrome as
the cause of Ménière's syndrome is unknown and it may have
been misdiagnosed in this case given the Veteran's heart
problems.
The Board finds that what is significant about the record is
what is does not show. Specifically, Dr. Still opined that
the Veteran could have had Ménière's syndrome. Moreover, Dr.
DeBoe opined that recurrent pain in both ears and fluid
behind the tympanic membranes is due to chronic eustachian
tube dysfunction, the chronic eustachian tube dysfunction is
due to the history of severe infection which has caused poor
drainage of the middle ear chamber, and constant ringing in
the ears and recurrent vertigo are symptoms of inner ear
disease. However, the record does not include a medical
opinion establishing a relation between a service-connected
disability (i.e., otitis media, tinnitus, hearing loss, and
residuals of a left eardrum perforation) and the alleged
Ménière's syndrome with vertigo. In particular, the evidence
does not show that a service connected disability caused the
Ménière's syndrome with vertigo or that a service connected
disability aggravated the Ménière's syndrome with vertigo.
38 C.F.R. § 3.310; Allen, supra. In the absence of such a
medical opinion, the Board cannot find that one exists. See
Colvin v. Derwinski 1 Vet. App. 171, 175 (1991) (VA may only
consider independent medical evidence to support its findings
and is not permitted to base decisions on its own
unsubstantiated medical conclusions). In fact, the June 2003
VA examiner opined that he disagreed with the Veteran's
representative's claim that the Veteran's in-service otitis
media represented the onset of his Ménière's disease.
Furthermore, the June 2003 VA examiner opined that the
Veteran's vertigo may have been caused by a heart problem
which has since been corrected by placement of a pacemaker
and that the Merck Manual article did not support the
assertion of an etiological link between the service-
connected otitis media and his Ménière's syndrome.
Accordingly, the Board finds that preponderance of the
competent and credible evidence of record does not establish
that the claimed Ménière's syndrome with vertigo were caused
or aggravated by a service connected disability including
otitis media or tinnitus.
Moreover, to the extent that Dr. DeBoe's statement is read as
an opinion that the Veteran's vertigo was caused by the
Veteran's service connected otitis media or is a residuals of
a left eardrum perforation, the Board notes that an
evaluation of the probative value of medical opinion evidence
is based on the medical expert's personal examination of the
patient, the examiner's knowledge and skill in analyzing the
data, and the medical conclusion reached. The credibility
and weight to be attached to such opinions are within the
province of the Board as adjudicators. Guerrieri v. Brown, 4
Vet. App. 467, 470-71 (1993). Greater weight may be placed
on one physician's opinion over another depending on factors
such as reasoning employed by the physicians and whether or
not and the extent to which they reviewed prior clinical
records and other evidence. Gabrielson v. Brown, 7 Vet. App.
36, 40 (1994). The probative value of a medical opinion is
generally based on the scope of the examination or review, as
well as the relative merits of the expert's qualifications
and analytical findings, and the probative weight of a
medical opinion may be reduced if the examiner fails to
explain the basis for an opinion. See Sklar v. Brown, 5 Vet.
App. 140 (1993).
With the above criteria in mind, the Board finds that it must
give more probative value to the negative opinion provided by
the June 2003 VA examiner than the December 2002 opinion from
Dr. BeBoe. The report of the VA examiner included a review
of the claims files along with a discussion/rationale of the
pertinent evidence of record. See Nieves-Rodriguez v. Peake,
22 Vet. App. 295 (2008) (the probative value of a medical
opinion comes from when it is the factually accurate, fully
articulated, and sound reasoning for the conclusion, not the
mere fact that the claims file was reviewed). On the other
hand, the opinion from Dr. DeBoe failed to discuss any of the
Veteran's medical history and to the extent that it did it
was inaccurate. See Bloom v. West, 12 Vet. App. 185, 187
(1999) (holding that the probative value of a physician's
statement is dependent, in part, upon the extent to which it
reflects "clinical data or other rationale to support his
opinion"). Specifically, while Dr. BeBoe's stated that the
Veteran had a history of severe infection with membrane
rupture on several occasions dating back to 1952 and several
hospitalizations for inner ear infections, the record does
not support these claims. Likewise, while. Dr. BeBoe's
stated that the Veteran had a 40 year history of recurrent
vertigo, the record is negative for evidence of complaints or
treatment for vertigo until the 1990's (see, for example,
March 1990 letter from E. A. Dannelly, III, M.D.; November
1995 and May 1999 VA treatment records; April 1999
computerized tomography (CT); October 1996 VA examination;
July 1999 auditory brainstem response testing; and September
2000 letter from Amy M. Meyer, M.Ed.). As such, the opinion
from Dr. DeBoe is of less probative value than that of the VA
examiner. Accordingly, the preponderance of the competent
and credible evidence of record establishes that the claimed
Ménière's syndrome with vertigo were not caused by a service
connected disability including otitis media, tinnitus, or
residuals of residuals of a left eardrum perforation.
38 C.F.R. § 3.310; Allen, supra; Colvin, supra.
The Board observes that the record does not show, nor does
the Veteran contend, that Ménière's syndrome was initially
manifested during service or that such disability was
aggravated therein. On the contrary, his service treatment
records are negative for any complaints, treatment, or
diagnosis of this condition. Accordingly, service connection
on a direct basis is not warranted.
As to the medical evidence related to the origins of the
sinusitis and sinus headaches, in July 2001 Dr. DeBoe opined
that he treated the Veteran "for sinus problems, caused by
injuries received to his ears in the military service." On
the other hand, the June 2003 VA examination opined, after a
review of the record on appeal and an examination of the
claimant, that Dr. BeBoe's statement that the Veteran had
injuries to his ears in service is not supported by the
service treatment records which only document treatment for
right ear otitis media. The examiner thereafter opined that
"[i]t is more likely than not that his chronic sinusitis has
nothing to do with his ear problems or other problems he had
in service" and while he "more likely than not has . . .
sinus headaches [that are] not due to any problems with his
ears or other problems he had in service."
Likewise, at the October 2008 VA examination it was opined,
after a review of the record on appeal and an examination of
the claimant, that while the Veteran had chronic sinusitis
that "[a]s far as [he] knows [from his] years of medical
experience, there is no connection between the ear canal and
the sinuses, therefore it is more likely than not that his
otitis media problems do not cause, aggravate, or worsen his
maxillary sinus problems. He simply has two problems not
connected in any way."
The Board finds that it must give more probative value to the
negative opinions provided by the June 2003 and October 2008
VA examiners than the July 2001 opinion from Dr. BeBoe. The
report of the VA examiners included a review of the claims
files along with a discussion/rationale of the pertinent
evidence of record. See Nieves-Rodriguez, supra. On the
other hand, the opinion from Dr. DeBoe failed to discuss any
of the Veteran's medical history. See Bloom, supra.
Moreover, Dr. DeBoe also did not provide a basis for his
opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382
(1998) (whether the physician provides the basis for his
opinion goes to the weight or credibility of the evidence).
As such, the opinion from Dr. DeBoe is not credible.
Accordingly, the preponderance of the competent and credible
evidence of record establishes that the sinusitis and sinus
headaches were not caused by a service connected disability
including otitis media. 38 C.F.R. § 3.310; Allen, supra;
Colvin, supra.
In reaching the above conclusions, the Board has not
overlooked the Veteran's and his representative's contentions
that the claimant's Ménière's s syndrome with vertigo as well
as his sinusitis and sinus headaches were caused by a service
connected disability including otitis media and/or tinnitus.
However, laypersons are generally not capable of opining on
matters requiring medical knowledge. Routen v. Brown,
10 Vet. App. 183, 186 (1997); also see Bostain v. West,
11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski,
2 Vet. App. 492 (1992) (a layperson without the appropriate
medical training and expertise is not competent to provide a
probative opinion on a medical matter, to include a diagnosis
of a specific disability and a determination of the origins
of a specific disorder). Lay testimony is competent,
however, to establish the presence of observable
symptomatology and "may provide sufficient support for a
claim of service connection." Layno v. Brown, 6 Vet. App.
465, 469 (1994).
When a condition may be diagnosed by its unique and readily
identifiable features, the origins or etiology of the
disorder is a determination "medical in nature" and is not
capable of lay observation. In such cases, the Board is
within its province to weigh that testimony and to make a
credibility determination as to whether that evidence
supports a finding of being caused or aggravated by a service
connected disability. See Barr v. Nicholson, 21 Vet. App.
303 (2007). Lay evidence can be competent and sufficient to
establish a diagnosis of a condition when (1) a layperson is
competent to identify the medical condition, (2) the
layperson is reporting a contemporaneous medical diagnosis,
or (3) lay testimony describing symptoms at the time supports
a later diagnosis by a medical professional. Jandreau v.
Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).
Unlike varicose veins under Barr, a dislocated shoulder under
Jandreau, a finding that a disorder was caused or aggravated
by a service connected disability is not an opinion capable
of being made by a lay person. See Woehlaert v. Nicholson,
21 Vet. App. 456 (2007). Therefore, the Board finds that the
Veteran's and his representative's lay statements are
outweighed by the VA medical opinions cited above.
Espiritu v. Derwinski, 2 Vet. App. 492 (1992).
Accordingly, the Board must conclude that the weight of the
evidence is against the claims of service connection for
Ménière's s syndrome with vertigo as well as his sinusitis
and sinus headaches secondary to a service connected
disability and service connection is not warranted. See
38 U.S.C.A. § 1110; 38 C.F.R. § 3.310; Allen, supra.
In reaching the above conclusions, the Board also considered
the doctrine of reasonable doubt. 38 U.S.C.A. § 5107(b).
However, as the preponderance of the evidence is against the
Veteran's claims, the doctrine is not for application. See
also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir.
2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
The application to reopen a claim of entitlement to service
connection for acquired psychiatric disorder is denied.
Service connection for Ménière's syndrome with vertigo is
denied.
Service connection for sinusitis and sinus headaches is
denied.
____________________________________________
DAVID L. WIGHT
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs